Exhibit 10.1.2
EMPLOYMENT AGREEMENT
BY AND BETWEEN
Z-TEL TECHNOLOGIES, INC.
AND
D. XXXXXXX XXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of February 1, 1998, by and between Z-TEL TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), and D. XXXXXXX XXXXX ("Employee").
WHEREAS, the Company and Employee desire to enter into this Agreement
to assure the Company of the services of Employee and to set forth the
respective rights and duties of the parties hereto;
WHEREAS, the Company is presently in the business of providing enhanced
telecommunications products and services (such activities, present and future,
being hereinafter referred to as the "Business");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company and Employee agree
as follows:
ARTICLE I
Employment
1.1 Employment and Title. The Company hereby employs Employee, and
Employee hereby accepts such employment, as President and Chief Executive
Officer of the Company, all upon the terms and conditions set forth herein.
1.2 Services. During the Term (as hereinafter defined) hereof, Employee
agrees to perform diligently and in good faith the duties of the President and
Chief Executive Officer of the Company, under the direction of the Board of
Directors of the Company (the "Board of Directors") or the Executive Committee
of the Board of Directors (the "Executive Committee"). Employee agrees to devote
his best efforts and all of his full business time, energies and abilities to
the services to be performed hereunder and for the exclusive benefit of the
Company. Employee shall be vested with such authority as is generally
commensurate with the position of President and Chief Executive Officer of the
Company, as further outlined below.
1.3 Location. The principal place of employment and the location of
Employee's principal office shall be in Tampa, Florida; provided, however,
Employee shall, if he determines it to be reasonably necessary, engage in
reasonable travel in the performance of his duties under this Agreement.
1.4 Representations. Each party represents and warrants to the other
that he/it has full power and authority to enter into and perform this Agreement
and that his/its execution and
performance of this Agreement shall not constitute a default under or breach of
any of the terms of any agreement to which he/it is a party or under which he/it
is bound. Each party represents that no consent or approval of any third party
is required for his/its execution, delivery and performance of this Agreement or
that all consents or approvals of any third party required for his/its
execution, delivery and performance of this Agreement have been obtained.
1.5 Sole Discretion. As the term "sole discretion" is used in this
Agreement, unless otherwise defined, it will be interpreted as the exercise of
reasonable discretion applying normal business practices to a contractual
relationship between a company and its president and chief executive officer.
ARTICLE II
Term
2.1 Term. The term of Employee's employment hereunder (the "Term")
shall commence as of the date hereof (the "Commencement Date") and shall
continue through the third anniversary of the Commencement Date (the "Scheduled
Termination Date"), unless earlier terminated pursuant to the provisions of this
Agreement. This Agreement shall automatically renew for an unlimited number of
successive one-year terms unless either party shall deliver written notice of
non-renewal at least ninety (90) days prior to the Scheduled Termination Date
(or the Scheduled Termination Date of any renewal term).
ARTICLE III
Compensation
3.1 Base Salary. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary of not less than One Hundred Fifty Thousand Dollars
($150,000.00), which base salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in equal monthly installments, in arrears. The
base salary will be reviewed annually, or, more frequently, as appropriate, by
the Board of Directors or the Compensation Committee of the Board of Directors,
as the case may be, for upward, but not downward, adjustment in its sole
discretion.
3.2 Bonus Compensation. Employee shall be eligible to receive bonus or
incentive compensation, which may be granted from time to time in the sole
discretion of the Board of Directors in accordance with the Company's
compensation structure in effect from time to time.
3.3 Employee's Legal Fees. Employee may, and the Company has encouraged
the Employee to, engage competent independent legal counsel for advice and
guidance with respect to this Agreement, including, without limitation, advice
as to the federal income tax consequences of this Article III. The Company shall
reimburse Employee for all reasonable legal fees incurred by Employee in
connection with the negotiation and execution of this Agreement.
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3.4 Benefits. Employee shall be entitled, during the Term hereof, to
the same medical, hospital, dental and life insurance coverage and benefits as
are then available to the Company's most senior executive officers, together
with the following additional benefits:
(a) An automobile allowance of One Thousand Dollars
($1,000.00) per month;
(b) Comprehensive medical coverage, including dependent
coverage, paid fully by the Company;
(c) Life insurance in an amount equal to two times
Employee's base salary;
(d) Long-term disability insurance in an amount, adjusted
annually, equal to two-thirds of Employee's prior
year base salary and incentive compensation, if any,
excluding compensation earned through Company stock
options or other securities;
(e) The Company's normal vacation allowance for all
employees who are executive officers of the Company,
but not less than three weeks annually;
(f) An Officers and Directors Indemnity Agreement,
substantially in the form attached hereto as Exhibit
A.
3.5 Withholding. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article III and
Article VII, are subject to withholding for such federal, state and local taxes
required pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities and Expenses. Employee shall be furnished with
an office at the Employee's principal office as set forth in Section 1.3 hereof,
or at such other location as agreed to by Employee and the Company, and other
working facilities and secretarial and other assistance suitable to his position
and reasonably required for the performance of his duties hereunder. The Company
shall reimburse Employee for all of Employee's reasonable expenses incurred
while employed and performing his duties under and in accordance with the terms
and conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code"), and applicable
regulations in effect from time to time.
4.2 Insurance. The Company may secure in its own name or otherwise, and
at its own expense, life, disability and other insurance covering Employee or
Employee and others, and Employee shall not have any right, title or interest in
or to such insurance other than as expressly provided herein. Employee agrees to
assist the Company in procuring such insurance by submitting to the usual and
customary medical and other examinations to be conducted by such physicians(s)
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as the Company or such insurance company may designate and by signing such
applications and other written instruments as may be required by any insurance
company to which application is made for such insurance. Any information
provided by Employee to such insurance company (the results of examinations
being deemed part of such information) will be provided on a confidential basis,
and the Company shall have no access thereto.
ARTICLE V
Illness or Incapacity
5.1 Right to Terminate. If, during the Term of this Agreement, Employee
shall be unable to perform, with or without a reasonable accommodation, in all
material respects the essential duties of his employment hereunder for a period
exceeding six (6) consecutive months by reason of illness or incapacity, this
Agreement may be terminated by the Company in its sole discretion pursuant to
Section 7.2 hereof.
5.2 Right to Replace. If Employee's illness or incapacity, whether by
physical or mental cause, renders him unable for a minimum period of thirty (30)
consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to
temporarily perform Employee's duties; provided, however, that if Employee
returns to work from such illness or incapacity within the six (6) month period
following his inability due to such illness or incapacity, he shall be entitled
to be reinstated in the capacity described in Article I hereof with all rights,
duties and privileges attendant thereto.
5.3 Rights Prior to Termination. Employee shall be entitled to his full
base salary under Section 3.1 hereof and full benefits under Section 3.4 hereof
during such illness or incapacity unless and until an election is made by the
Company to terminate this Agreement in accordance with the provisions of this
Article V.
5.4 Determination of Illness or Incapacity. For purposes of this
Article V, the term "illness or incapacity" shall mean Employee's inability to
perform his duties hereunder substantially on a full-time basis due to physical
or mental illness as determined by the Board of Directors, in its reasonable
discretion based upon competent medical evidence. Upon the Company's written
request, Employee shall submit to reasonable medical and other examinations to
provide the evidence required hereunder.
ARTICLE VI
Confidentiality
6.1 Confidentiality. During the Term of this Agreement and for a period
of five (5) years thereafter, Employee agrees to maintain the confidential
nature of the Company's confidential and proprietary trade secrets, including,
without limitation, development ideas, acquisition strategies and plans,
financial information, records, "know-how", methods of doing business, customer,
supplier and distributor lists and all other confidential information of the
Company. Employee shall not use (other than in connection with his employment),
in any way whatsoever, such trade secrets
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except as authorized in writing by the Company. Employee shall, upon the
termination of his employment, deliver to the Company any and all records,
books, documents or any other materials whatsoever (including all copies
thereof) containing such trade secrets which shall be and remain the property of
the Company.
6.2 Non-Removal of Records. All documents, papers, materials, notes,
books, correspondence, drawings and other written and graphic records of the
Business of the Company which Employee shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Employee's employment with the
Company for any reason, shall not be removed from the Company's premises without
the Company's prior written consent.
ARTICLE VII
Termination
7.1 Termination For Cause. This Agreement and the employment of
Employee may be terminated by the Company "For Cause" in any of the following
circumstances:
(a) Employee has committed any fraud, dishonesty,
misappropriation or similar act against the Company;
or
(b) Employee is in default in a material respect in the
performance of Employee's obligations, services or
duties hereunder, which shall include, without
limitation, Employee's willfully disregarding the
written instructions of the Board of Directors of the
Company concerning the conduct of his duties
hereunder, Employee's conduct which, after written
notice and an opportunity to cure, is materially
inconsistent with the published policies of the
Company, as promulgated from time to time and which
are generally applicable to all employees and/or
senior executives, or Employee's breach of any other
material provision of this Agreement; or
(c) Employee is grossly negligent or engages in willful
misconduct in the performance of his duties
hereunder; or
(d) Employee has been adjudicated guilty by, or enters a
plea of guilty or no contest before, a court of
competent jurisdiction of illegal activities or found
by a court of competent jurisdiction to have engaged
in other wrongful conduct which individually, or in
the aggregate, has a material adverse effect on the
Company, its prospects, earnings or financial
condition, other than minor traffic infractions.
A Termination For Cause under this Section 7.1 shall be
effective upon the date set forth in a written notice of termination delivered
to Employee.
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7.2 Termination Without Cause. This Agreement and the employment of
the Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto; or
(b) At the election of the Company by its giving not less
than thirty (30) days' written notice to Employee; or
(c) At the election of the Company by its giving not less
than thirty (30) days' written notice to Employee in
the event of an illness or incapacity described in
Section 5.1; or
(d) At the election of the Employee by his giving not
less than thirty (30) days' written notice to the
Company for Good Reason; or
(e) Upon Employee's death.
"Good Reason" means (i) employee ceasing to be a senior
executive officer of the Company or (ii) a change in employee's reporting
requirements.
A Termination Without Cause under Sections 7.2(b), (c) or (d)
hereof shall be effective upon the date set forth in a written notice of
termination or resignation delivered hereunder, which shall be not less than
thirty (30) days nor more than forty-five (45) days after the giving of such
notice. A Termination Without Cause under Sections 7.2(a) or (e) hereof shall be
automatically effective upon the date of mutual agreement or the date of death
of the Employee, as the case may be.
7.3 Effect of Termination For Cause. If Employee's employment is
terminated For Cause:
(a) Employee shall be entitled to accrued base salary
under Section 3.1 and accrued vacation pay, each
through the date of termination;
(b) Employee shall be entitled to reimbursement for
expenses accrued through the date of termination in
accordance with the provisions of Section 4.1 hereof;
and
(c) Except as provided in Article XI, this Agreement
shall thereupon be of no further force and effect.
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7.4 Effect of Termination Without Cause. If Employee's employment is
terminated Without Cause:
(a) Employee shall be entitled to accrued base salary
under Section 3.1 and accrued vacation pay, each
through the date of termination;
(b) Employee shall be entitled to reimbursement for
expenses accrued through the date of termination in
accordance with the provisions of Section 4.1 hereof;
(c) Employee shall be entitled to receive all amounts of
base salary as would have been payable under Section
3.1 (provided that Employee shall receive not less
than twenty-four (24) months of base salary) through
the Scheduled Termination Date of the applicable term
hereof, which amounts shall be paid upon termination;
(d) Employee shall be entitled to receive all bonuses and
benefits as would have been awarded and/or paid under
Sections 3.2 and 3.4 hereof through (or as a result
of events occurring through) the Scheduled
Termination Date, which benefits shall be awarded as
and when the same would have been awarded under the
Agreement had it not been terminated; and
(e) Except as provided in Article XI, this Agreement shall
thereupon be of no further force or effect.
7.5 Termination Upon Change of Control. Upon a "Change of Control" (as
such term is defined in Section 7.6 hereof) of the Company during the Term
hereof, Employee may, at his sole discretion, declare this Agreement terminated
and receive a one-time, lump sum severance payment equal to two and nine-tenths
(2.9) times the total amount of the annual base salary payable under the terms
of Section 3.1 of this Agreement plus any incentive or bonus paid in the prior
year pursuant to Section 3.2 of this Agreement upon the date of such Change of
Control, if within three (3) years of the Change of Control:
(a) Employee's employment hereunder is terminated prior
to the Scheduled Termination Date of the applicable
term hereof Without Cause; or
(b) Employee elects to terminate his employment with the
Company in the event (i) he is removed from the
office which he held prior to the Change of Control
or (ii) the Company fails to afford Employee the
power and authority generally commensurate with the
position of President and Chief Executive Officer
prior to the Change of Control or (iii) the Company
requires Employee to relocate his residence outside
of Tampa, Florida.
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7.6 Change of Control. For purposes of Section 7.5 of this Agreement,
a Change of Control ("Change of Control") shall be deemed to have occurred in
the event of:
(a) The acquisition by any person or entity, or group
thereof acting in concert, of "beneficial" ownership
(as such term is defined in Securities and Exchange
Commission ("SEC") Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange
Act")), of securities of the Company which, together
with securities previously owned, confer upon such
person, entity or group the voting power, on any
matters brought to a vote of shareholders, of thirty
percent (30%) or more of the then outstanding shares
of capital stock of the Company; or
(b) The sale, assignment or transfer of assets of the
Company or any subsidiary or subsidiaries, in a
transaction or series of transactions, if the
aggregate consideration received or to be received by
the Company or any such subsidiary in connection with
such sale, assignment or transfer is greater than
fifty percent (50%) of the book value, determined by
the Company in accordance with generally accepted
accounting principles, of the Company's assets
determined on a consolidated basis immediately before
such transaction or the first of such transactions;
or
(c) The merger, consolidation, share exchange or
reorganization of the Company (or one or more
subsidiaries of the Company) as a result of which the
holders of all of the shares of capital stock of the
Company as a group would receive less than fifty
percent (50%) of the voting power of the capital
stock or other interests of the surviving or
resulting corporation or entity; or
(d) The adoption of a plan of liquidation or the approval
of the dissolution of the Company; or
(e) The commencement (within the meaning of SEC Rule
14d-2 under the Exchange Act) of a tender or exchange
offer which, if successful, would result in a Change
of Control of the Company;
(f) A determination by the Board of Directors of the
Company, in view of then current circumstances or
impending events, that a Change of Control of the
Company has occurred or is imminent, which
determination shall be made for the specific purpose
of triggering the operative provisions of this
Agreement; or
(g) The Board of Directors is not comprised of a majority
of directors who were either directors as of the date
of this Agreement (the "Initial Directors") or whose
nomination or election was approved by at least a
majority of the Initial Directors or by a majority of
directors whose nomination or election was approved
by the Initial Directors.
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7.7 Certain Additional Payments by the Company.
(a) If it shall be determined that any payment,
distribution or benefit received or to be received
by Employee from the Company ("Payments") would be
subject to the excise tax imposed by Section 4999 of
the Code (the "Excise Tax"), then Employee shall be
entitled to receive an additional payment (the
"Excise Tax Gross-Up Payment) in an amount such that
the net amount retained by Employee, after the
calculation and deduction of any Excise Tax on the
Payments and any federal, state and local income
taxes and excise tax on the Excise Tax Gross-Up
Payment provided for in this Section 7.7, shall be
equal to the Payments. In determining this amount,
the amount of the Excise Tax Gross-Up Payment
attributable to federal income taxes shall be
reduced by the maximum reduction in federal income
taxes that could be obtained by the deduction of the
portion of the Excise Tax Gross-Up Payment
attributable to state and local income taxes.
Finally, the Excise Tax Gross-Up Payment shall be
reduced by income or excise tax withholding payments
made by the Company or any affiliate of either to
any federal, state or local taxing authority with
respect to the Excise Tax Gross-Up Payment that was
not deducted from compensation payable to Employee.
(b) All determinations required to be made under this
Section 7.7, including whether and when an Excise
Tax Gross-Up Payment is required and the amount of
such Excise Tax Gross-Up Payment and the assumptions
to be utilized in arriving at such determination,
except as specified in Section 7.7(a) above, shall
be made by the Company's independent auditors (the
"Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and
Employee within 15 business days after Employee
provides the Company with notice that a Payment has
been or will be made or such earlier time as may be
required by the Company. The determination of tax
liability made by the Accounting Firm shall be
subject to review by the Employee's tax advisor and,
if Employee's tax advisor does not agree with the
determination reached by the Accounting Firm, then
the Accounting Firm and Employee's tax advisor shall
jointly designate a nationally recognized public
accounting firm, which shall make the determination.
All fees and expenses of the accountants and tax
advisors retained by either Employee or the Company
shall be borne by the Company. Any Excise Tax
Gross-Up Payment, as determined pursuant to this
Section 7.7, with respect to a Payment shall be paid
by the Company to Employee at such time as Employee
is entitled to receive the Payment. Any
determination by a jointly designated public
accounting firm shall be binding upon the Company
and Employee.
(c) As a result of the uncertainty in the application of
Subsection 4999 of the Code at the time of the
initial determination hereunder, it is possible that
Excise Tax Gross-Up Payments will not have been made
by the Company that should have been made consistent
with the calculations required to be
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made hereunder ("Underpayment"). In the event that
Employee thereafter is required to make a payment of
any Excise Tax, any such Underpayment calculated in
accordance with and in the same manner as the Excise
Tax Gross-Up Payment in Section 7.7(a) above shall
be promptly paid by the Company to or for the
benefit of Employee. In the event that the Excise
Tax Gross-Up Payment exceeds the amount subsequently
determined to be due, such excess shall constitute a
loan from the Company to Employee payable on the
fifth day after demand by the Company (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code).
ARTICLE VIII
Non-Competition and Non-Interference
8.1 Non-Competition. Employee agrees that during the Term hereof and,
in the case of a Termination For Cause, for a period of two (2) years
thereafter, Employee will not, directly, indirectly, or as an agent on behalf of
or in conjunction with any person, firm, partnership, corporation or other
entity, own, manage, control, join, or participate in the ownership, management,
operation, or control of, or be financially interested in or advise, lend money
to, or be employed by or provide consulting services to (i) any person or entity
seeking to provide the services or products which the Company provided or
planned on providing as of the date of termination, or (ii) any person or entity
to whom Employee provided services in any capacity on behalf of the Company, or
(iii) any person or entity to whom Employee was introduced or about whom
Employee received information through the Company and which person or entity is
located within the United States of America; provided, however, that the
foregoing restriction regarding financial interest shall not apply to ownership
of less than 5% of the common equity of any entity whose common equity is
registered under the Securities Exchange Act of 1934, as amended.
8.2 Non-Interference. Employee agrees that during the Term hereof and,
in the case of a Termination For Cause, for a period of two (2) years
thereafter, Employee will not, directly or as an agent on behalf of or in
conjunction with any person, firm, partnership, corporation or other entity,
retain or hire any person who was an employee of the Company while Employee was
employed by the Company or to whom Employee was introduced or about whom
Employee received information through the Company.
8.3 Severability. If any covenant or provision contained in this
Article VIII is determined to be void or unenforceable in whole or in part, it
shall not be deemed to affect or impair the validity of any other covenant or
provision. If, in any arbitral or judicial proceeding, a tribunal shall refuse
to enforce all of the separate covenants deemed included in this Article VIII,
then such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
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ARTICLE IX
Remedies
9.1 Equitable Remedies. Employee and the Company agree that the
services to be rendered by Employee pursuant to this Agreement, and the rights
and interests granted and the obligations to be performed by Employee to the
Company pursuant to this Agreement, are of a special, unique, extraordinary and
intellectual character, which gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in any action at law,
and that a breach by Employee of any of the terms of this Agreement will cause
the Company great and irreparable injury and damage. Employee hereby expressly
agrees that the Company shall be entitled to the remedies of injunction,
specific performance and other equitable relief to prevent a breach of Articles
VI and VIII of this Agreement, both pendente lite and permanently, against
Employee, as such breach would cause irreparable injury to the Company and a
remedy at law would be inadequate and insufficient. Therefore, the Company may,
in addition to pursuing its other remedies, obtain an injunction from any court
having jurisdiction in the matter restraining any further violation.
9.2 Rights and Remedies Preserved. Nothing in this Agreement except
Section 10.11 shall limit any right or remedy the Company or Employee may have
under this Agreement or pursuant to law for any breach of this Agreement by the
other party. The rights granted to the parties herein are cumulative and the
election of one shall not constitute a waiver of such party's right to assert
all other legal remedies available under the circumstances.
ARTICLE X
Miscellaneous
10.1 No Waivers. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
10.2 Notices. Any notice to be given to the Company and Employee under
the terms of this Agreement may be delivered in person, by telecopy, telex or
other form of written electronic transmission, or by registered or certified
mail, postage prepaid, and shall be addressed as follows:
If to the Company: Z-Tel Technologies, Inc.
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Chief Legal Officer
If to Employee: D. Xxxxxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
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Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 Severability. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 Successors and Assigns. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
10.5 Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
10.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
10.7 Section Headings. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
10.8 Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
10.9 Gender. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
10.10 Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall be deemed one original.
10.11 Confidential Arbitration. The parties hereto agree that any
dispute concerning or arising out of the provisions of this Agreement shall be
resolved by confidential arbitration in accordance with the rules of the
American Arbitration Association. Such confidential arbitration
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shall be held in Tampa, Florida, and the decision of the arbitrator(s) shall be
conclusive and binding on the parties and shall be enforceable in any court of
competent jurisdiction. The arbitrator may, in his or her discretion, award
attorneys fees and costs to such party as he or she sees fit in rendering his or
her decision. Notwithstanding the foregoing, if any dispute arises hereunder as
to which the Company desires to exercise any rights or remedies under Section
9.1 hereof, the Company may, in its discretion, in lieu of submitting the matter
to arbitration, bring an action thereon in any court of competent jurisdiction
in Tampa, Florida, which court may grant any and all relief available in equity
or at law. In any such action, the prevailing party shall be entitled to
reasonable attorneys' fees and costs as may be awarded by the court.
10.12 Other Agreements. Simultaneously with this Agreement, Employee is
entering into an Indemnity Agreement and Employee Stock Restriction Agreement.
In doing so, Employee has relied on the Company's assurances that the other
senior executives of the Company are entering into identical agreements, except
with respect to title and number of shares. The Company agrees that if it
subsequently amends any of those agreements in a manner favorable to the other
party thereto (other than to change the number of shares covered thereby), it
will offer the same amendment to Employee.
ARTICLE XI
Survival
11.1 Survival. The provisions of Articles VI, VII, VIII, IX and X, of
this Agreement shall survive the termination of this Agreement whether upon, or
prior to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
Z-TEL TECHNOLOGIES, INC.,
a Delaware corporation
By:
---------------------------------
D. Xxxxxxx Xxxxx, President and
Chief Executive Officer
EMPLOYEE
-------------------------------------
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
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